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In Iwanejko v. Cohen & Grigsby, P.C., No. 2:03-cv-1855, 2006 U.S. Dist. LEXIS 66023 (W.D.Pa. Sept. 15, 2006), Iwanejko, an associate attorney at Cohen & Grifsby, was transported to a psychiatric hospital after a severe a psychotic episode at work.He was offered FMLA leave while he recovered.Iwanejko eventually returned to work with restrictions set forth in a return to work agreement negotiated with input from his treating physician.He agreed to limit his work to 30 hours a week and to only be in the office on weekdays from 8:00 am through 6:00 pm.He received his same salary, benefits, office, secretary, title and practice area.Approximately a year later he was allowed to work 40 hours a week. Two years after the incident his employer discovered that Iwanejko had violated the terms of the return to work agreement by working after 6:00 p.m. on 87 occasions.He was eventually terminated for breach of the return to work agreement.Iwanejko sued alleging that his employer failed to return him to an equivalent position at the conclusion of his FMLA leave.The court found that Iwanejko was reinstated to his same position albeit with the limitation on the number of hours he was permitted to work each day and week.The court found that the work hour’s limitation was reasonable in light of the plaintiff’s medical condition.The court further found that the position was “substantially equivalent” and that the work hour’s limitation did not result in a loss of income.

Comment:The FMLA requires all federal employers to return an employee from FMLA leave to the same or an equivalent position.The court in Iwanejko is somewhat confused as it asserts both that the plaintiff was returned to his same position and a substantially equivalent position.The work limitations restrictions would appear to more appropriately bring the post-return position under the “equivalent position” prong as the pre-leave position did not have such restrictions.The case reminds us that although an “equivalent” position must be virtually identical to the former position in terms of pay, benefits, and working conditions, the standard does not require that the position be exactly the same.Courts have permitted employers to take into account the employee’s physical capabilities in determining the equivalent work and compensation involved.I also note that the court could have determined that the Iwanejko did not have an FMLA right to return to work because he was not able to perform all essential functions of the job, including the long work hours required of legal associates.As such, the work hour’s limitation did not implicate the FMLA at all.Return to work issues are addressed in Chapter 13 of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation (Dewey Publications, Inc. 2003 & 2005 Supplement).

In Dougherty, Teva’s human resources manger suggested that Dougherty leave Teva due to continuing conflicts with her supervisor.Plaintiff was subsequently provided a Separation Agreement and General Release.The Separation Agreement provided that, in exchange for agreeing to its terms Dougherty would receive one month’s salary and continued health insurance through COBRA.The Agreement released all claims against Teva arising out of her employment.Dougherty initially indicated that she did not want to leave the company but wanted to take a leave of absence.Teva sweetened the offer by increasing the compensation to two months salary and two months of continued COBRA coverage.Dougherty accepted the deal and signed a modified Agreement.A week after she signed the Agreement and took the money Dougherty called her employer and stated that she wanted to revoke the Agreement.She subsequently filed suit alleging violation of the FMLA.

The court noted that whether an employee can, as part of a severance agreement, waive his or her right to sue for violations of the FMLA was a matter of first impression in the Third Circuit.The court noted that the circuits are split on this issue.The Fourth Circuit held that the plain language of 825.220(d) prohibits any waiver of the substantive and protective rights conferred by the FMLA unless approved by the DOL or a court.The Fifth Circuit found that separation agreements were enforceable because 825.220(d) prohibited only the prospective wavier of FMLA “rights” (e.g., leave and reinstatement) and that the ability to file a civil suit was not such a “right” but merely a means of enforcement.The court in Doughtery found the decision of the Fourth Circuit more persuasive.The court went on to reject the argument that the plaintiff ratified the agreement by retaining the two months severance pay, finding that the third Circuit has concluded that “concepts of ratification and tender back are inapplicable to federal remedial statutes.”

Comment:The decision is applicable to FLMA cases arising under Title I, the CAA, and the PEOAA as these FMLA variants contain anti-wavier provisions.Title II does not allow civil suit and does not otherwise contain similar anti-waiver provisions.To avoid financing litigation against the agency, federal employers subject to Title I, the CAA, or the PEOAA should consult with counsel before securing a severance agreement waiving the right to sue for FMLA violations.

An employer’s unfulfilled request, offer, or threat to change an employee’s position on return from FMLA leave is not an adverse employment action warranting recovery under the FMLA.InSchofield v. Metropolitan Life Ins. Co., No. 3:CV-03-0357, 2006 U.S.Dist. LEXIS 65998 (M.D.Pa. Sept. 15, 2006), plaintiff alleged that MetLife violated the FMLA when his supervisor to him that he “probably won’t be coming back [to his] project manager position …because of [his] illness.”Instead Schofield would be retained as a consultant and another person would take over his project manager position.Schofield was, in fact, returned to his previous position upon his return from FMLA leave. The court dismissed the case because Schofield failed to establish that he suffered an adverse employment action as a result of the request, offer, or threat.

Comment:To establish an actionable violation of the FMLA a plaintiff generally must demonstrate that they suffered an adverse employment action casually related to the exercise of FMLA rights. The decision could also have found in favor of the employer because an employee is not entitled to return to their same position at the conclusion of FMLA leave.An employer may place an employee returning from FMLA leave in an equivalent position.As such, stating that the employer might return the employee to a different position would not violate the FMLA, unless the employer was compelled to return the employee to the same position by another law, collective bargaining agreement, or employer policy.Alternatively, even though he was ultimately returned to his pre-leave position, Mr. Schofield may have been successful if he could have established that the threat chilled his willingness to exercise his FMLA rights, such as the right to future FMLA leave.

In Thorton v. Frontier Refining & Marketing, Inc., No. 05-1241-JTM (D.Kan.Sept. 15, 2006), the employer terminated Thorton after his repeated failure to follow established policy to call and let the company know if the employee is not going to be able to start their shift on time.It was undisputed that the last incident prior to his termination Thorton did not report to work or call in his absence.He did not ask for leave nor did he informally request any such leave.He was not at any time under any restrictions on his ability to perform his job.The court observed:

Thorton’s termination does not implicate the FMLA because the termination was unrelated to any request for FMLA leave, but is instead the result of the application of standard company notice of absence policies to an employee with long-standing attendance problems…This is true even if one assumes, as Thorton argues at length, that his absences in March and July 2003 should be considered FMLA.The fact remains that Thorton knew of the company’s notice policy, and failed to comply with it on two separate occasions after the earlier absences.The FMLA does not prevent an employer form enforcing attendance policies such as those governing giving notice, eve if the underlying absence might otherwise be FMLA-qualified leave…

Comment:All federal sector FMLA variants require that an employee request leave in order to invoke their FMLA rights.An employee who does not request leave, directly or indirectly, is not entitled to the protections of the FMLA.Moreover, under all federal sector FMLA variants, federal employers may require an employee to comply with the employer’s usual and customary notice and procedural requirements (although the standard differs somewhat between Title II and Titles I, the CAA, and the PEOAA).Employees who fail to abide by the employer’s “usual and customary” leave procedures may be subject to discipline even if the leave being requested is covered by the FMLA.This reminds us that an employee who exercises FMLA rights is not immune to discipline for violation of employer policies, including leave policies, any more than if the leave was not covered by the FMLA.

The court in Beauchat v. Mineta, No. 03 Civ. 3196 (DRH)(ETB), 2006 U.S. Dist. LEXIS 67844 (E.D.N.Y. Sept. 21, 2006), dismissed the FMLA civil suit filed against the U.S. Department of Transportation by one of its air traffic control specialists because, unlike employees in the private sector, as a federal employee the plaintiff “has no private right of action under the FMLA.”

Comment:The decision is correct in its result but inaccurate in its sweeping language.The mere fact that an individual is a federal employee does not bar them from the ability to sue for FMLA violations.Federal employees covered by Title I, the CAA, and the PEOAA may file a civil suit for FMLA violations. Federal employees covered by Title II, like Ms. Beauchat, however, are not afforded the opportunity to file a civil suit for FMLA violations.The reason is that, unlike the other federal sector FMLA variants, Title II did not expressly waive sovereign immunity and thereby permit suit for violation of the FMLA.

In Sanchez v. Am. Popcorn Co., No. C04-4115-MWB, 2006 U.S. Dist. LEXIS 65875 (N.D.Iowa Sept. 14, 2006) the court declined to dismiss the FMLA civil suit even though the employee failed to request FMLA leave.Ms. Sanchez suffered a work injury on October 14.She reported her injury the next day.She nevertheless worked the remainder of the week and Monday through Wednesday of the following week.She saw the company doctor on Wednesday of the following week, who cleared her to return to work with some restrictions resulting from her shoulder strain.Sanchez worked the remainder of the week.The company doctor informed the human resources manager that Sanchez suffered a minor muscle strain and that she might be misrepresenting the severity of her injury.At the same time, American Popcorn’s management was under pressure to reduce the number of its employees as the result of the loss of a major client.The decision was made that day to terminate Ms. Sanchez.On October 28, Ms. Sanchez was terminated.After her termination she received treatment for her shoulder injury from several other physicians.Sanchez sued alleging that her termination violated the FMLA.The employer moved for an award of summary judgment in its favor arguing that Sanchez could not establish a prima facie case because she did not request FMLA leave prior to the termination of her employment.Sanchez argued that she was terminated so soon after her injury that she never had the opportunity to seek leave under the FMLA.She argued that she was terminated within two weeks of her injury and within one day of the company doctor’s telephone call to human resources regarding her injury.She also argued that the company’s stated reason for terminating her employment (a RIF) was pretextual as she was the only one terminated on her shift and the other terminations ended eight months prior.The court agreed with Sanchez, finding that “Sanchez has generated a genuine issue of material fact on the question whether she would have sought leave under the FMLA from a serious medical condition if she had not been fired.”

Comment:The decision is a boon for employees as it permits an FMLA suit to proceed even though the employee did not request FMLA leave because the employee might have sought FMLA leave at some unidentified time in the future but for being fired.I mean, what employee would not assert that they would have sought FMLA leave but for being fired?The decision is puzzling in other ways as well.For example, although American Popcorn was aware of the injury, the information the decision makers had at the time of the termination decision was that her shoulder injury was minor.Indeed, the decision makers were told by the company doctor that the employee might be overstating the extent of her injury.Another piece of information known by the decision makers was that Sanchez worked every day for the next two weeks without requesting leave, again suggesting that the injury was minor and that leave was unnecessary.Such facts do not lend themselves to a finding that the employer was on constructive notice that Sanchez was in need of FMLA leave.Again, she was never absent or requested leave.Oddly, the court based its decision in part on her need for continued medical care after her termination.It is unclear how post-termination medical care excuses the employee’s failure to request FMLA leave during her employment.The decision is applicable to FMLA claims under Title I, the CAA, and the PEOAA.Title II, on the other hand, requires that employees explicitly invoke the right to FMLA leave.

In Modica v. Taylor, No. 05-50075, 2006 U.S.App. LEXIS 23372 (5th Cir. Sept. 13, 2006), the Fifth Circuit found that an employee of the Texas Cosmetology Commission could file a civil suit against the director of the Commission for violation of the FMLA.In so finding the court determined that the Commission director, a public official, was an “employer” within the meaning of the FMLA.The court came to that conclusion based on its reading of the statue and DOL regulations.Critically an employer is defined as “any person who acts, directly or indirectly, in the interest of an employer.”It also includes public agencies as employers.The court reviewed the prevailing split in the circuit courts on public official individual liability for FMLA violations.The court noted that the Sixth and Eleventh Circuits declined to recognize individual public official liability for FMLA violations based, in part, on its determination that the individual liability provision was separate and distinct from the public agency provisions defining an FMLA-covered “employer.”The Fifth Circuit, however, joined the Eighth Circuit to find Congress, in drafting the FMLA, chose to make the definition of “employer” materially identical to that in the FLSA,” and it is well established that the FLSA permits public employers to be held individually liable.

Having found that the FMLA permits suit against individual public sector officials, the courtwent on to find that the Commission director was entitled to qualified immunity from personal liability for discharging Modica because the law on this issue was not clearly established in 2003.As support, the court cited the same split of authority regarding public employee individual liability for FMLA violations.

Comment:The circuits are split on individual public supervisor liability for violation of Title I of the FMLA.Title II does not permit civil suit so there is no individual liability under that federal sector FMLA variant.Employees of Congress and the Executive Office of the President are also not entitled to sue individual supervisors or managers for FMLA violations as the CAA and the PEOAA does not define an FMLA-covered employer to include “any person who acts, directly or indirectly, in the interest of an employer.”Federal agencies with Title I employees should consult with counsel to determine whether managers or supervisors may be personally liable for violating a Title I employees FMLA rights. The Fifth Circuit covers Texas, Louisiana, and Mississippi.

In McConnell v. Swifty Transportation, Inc., No. 05-4297, 2006 U.S.App. LEXIS 21900 (6th Cir. Aug. 23, 2006, McConnell worked as a gasoline truck driver for Swifty for sixteen years until her termination.In 2003, McConnell was diagnosed with acute stress disorder and major depression.He was prescribed an anti-depressant and placed on two weeks medical leave, which was subsequently extended for two months.McConnell applied for short-term disability benefits.His application was sent to Swifty’s disability benefits, provider, which partially denied the request based on insufficient medical documentation.During a conversation with a representative of Swifty’s disability benefits provider regarding the partial denial of benefits and the need for more medical documentation McConnell allegedly got mean and alleged stated that he wished his doctor would return him to work so that he could “personally come pay” the representative a visit.The representative took the comment as a threat and reported it to Swifty.Swifty terminated McConnell the next day.McConnell denied making the comment.McConnell sued alleging that Swifty retaliated against him for exercising his rights under the FMLA by terminating his employment.The court disagreed.The court found that Swifty had an “honest belief” that McConnell made the threatening comments for which he was fired.McConnell had argued that the short time frame in which Swifty determined to discharge him rendered its claimed “honest belief” unreasonable.To determine whether the employer had an honest belief in the proffered basis for the adverse action, the court considers whether the employer can establish its “reasonable relieance” on the particularized facts that were before it at the time the decision was made:The court continued:

In deciding whether an employer reasonably relied on the particularized facts then before it, we do not require that the decisional process used by the employer be optimal or that it left no stone unturned.Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse action

Importantly, we must not second guess the business judgment of the employer, but simply evaluate whether the employer gave an honest explanation of its behavior.

Here, the court found that Swift honestly believed that McConnell threatened the disability benefits representative and that the decision to terminate him was reasonably informed and considered.The court found that the two-minute time line between the threat and termination decision did not render the decision invalid, particularly where Swifty had a supervisor call McConnell and confirm the threat before making the final decision.

Comment:The “honest belief” defense is frequently invoked by employers to justify the adverse action decision at issue.As demonstrated in McConnell, the standard for establishing the employer’s “honest belief” is quite low.The decision also demonstrates that the FMLA does not protect employees from the consequences of their conduct independent of their request for leave.As all federal sector FMLA variants prohibit retaliation, the honest belief defense should be available to all federal employers.

In Potts v. Franklin Elec. Co., No. CIV 05-433-JHP, 2006 U.S.Dist. LEXIS 60781 (E.D.Ok. Aug. 24, 2006), the court found that an employee need not be entitled to FMLA leave to maintain a civil action for interference with or retaliation for exercising FMLA rights.Potts had been an employee of the defendant for approximately ten years prior to his termination.He was informed by his dentist that he might have cancer of the mouth.Potts notified his employer of the dentist’s opinion, and that he anticipated needing FMLA leave for a biopsy and cancer treatment.Shortly after informing his employer of his need for leave, Potts was terminated.The company argued that the termination had nothing to do with his leave request but was based on a separate matter.Approximately two months after his termination. Potts learned he did not in fact have oral cancer.The company moved to dismiss the FMLA claims arguing that, because he was not ultimately diagnosed with cancer he did not have an FMLA-covered serious health condition and, therefore, could not establish a prima facie case of interference or retaliation.The court disagreed.The court found that whether Potts was ultimately entitled to leave was immaterial to the issue of whether his employer interfered or retaliated against him for the “attempt to exercise” his rights under the FMLA.The court reasoned that Act (29 U.S.C. 2615(a)) does not say that employees must be “eligible” or “qualified” before they may file either an interference or retaliation claim for requesting leave.The court opined that the FMLA would protect someone who mistakenly asks for FMLA leave although they may be ineligible.It also observed that the anti-discrimination provisions apply to prospective employees who, by definition, are not yet eligible for FMLA leave.

Comment:The decision illustrates a contradiction under Title I of the FMLA.The court is correct that the anti-interference and anti-retaliation provisions apply even though the employee is not eligible or otherwise entitled to FMLA leave.The court is on more shaky grounds where it proclaims that prospective employees can sue for violations of the FMLA. Title I and the DOL implementing regulations actually limit civil suit to an “employee.”As defined in the statute and regulations, the term does not include non-employees.The courts have nevertheless split on the issue, some allowing suit by non-employees while others have dismissed such suits.Moreover, Title I limits the award of monetary damages to eligible employees, further limiting the utility of allowing non-employees to sue for FMLA violations.The issue is addressed in Chapter 15 of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation (Dewey Publications, Inc. 2003 & 2005 Supplement).

The FMLA provides for the right to a trial by jury where the claim involves money damages.Petty v. Carolina Biological Supply, No. 1:05cv00954, 2006 U.S. Dist. LEXIS 63615 (M.D.N.C. Sept. 5, 2006).

Comment:The decision is correct for Title I cases arising in the private sector.The courts are split on whether a jury trial is available for Title I cases in the federal sector.Some courts have accepted arguments that federal agencies have not waived sovereign immunity to permit jury trials for FMLA claims.It is likely that the same split of authority will develop for civil suits pursuant to the CAA and PEOAA. Title II does not allow aggrieved employees to sue the agency employer for FMLA violations.